Non-native species: code of practice

9. Species Control Agreements and Species Control Orders

Summary

The 1981 Act provides relevant bodies ^[64] with mechanisms for the control of invasive species.

What is a Species Control Agreement ( SCA)?

A Species Control Agreement ( SCA) is a voluntary agreement which may set out;

• what must be done
• by whom and
• by when

in order to control an invasive non-native plant or animal.

There is no penalty for non-compliance with these voluntary agreements (although it may result in a Species Control Order being made).

What is a Species Control Order ( SCO)?

Species Control Orders ( SCOs) can be made;

• where an owner/occupier has not signed up to a SCA that has been offered
• where an owner/occupier has failed to comply with the terms of a SCA
• where the relevant body has been unable to find out the name or address of the owner or any occupier and has not therefore been able to offer a SCA or
• where action is considered urgent - see section on ESCO below.

The relevant body must give 28 days' notice before the SCO comes into force and appeals are possible.

What is an Emergency Species Control Order ( ESCO)?

An Emergency Species Control Order ( ESCO) may be made when the relevant body considers that the making of the Order is urgently necessary and the ESCO may be made without attempting to make a SCA.

There is no notice period for an ESCO but it expires 49 days after it is made and an appeal against an ESCO is possible.

What information should a Species Control Order ( SCO) contain?

• where (what premises) the SCO relates to, including a map;
• what type of invasive non-native animal or plant it relates to;
• what operations are to be carried out; who is to carry them out; how and when they should be carried out;
• what operations must not be carried out;
• the date the SCO will come into effect and the period for which it is to have effect; and
• circumstances in which an appeal against the SCO may be made.

Is it an offence to disobey a Species Control Order ( SCO)?

Section 14K of the 1981 Act makes it an offence to;

• fail, without reasonable excuse, to carry out an operation required under a SCO in the manner required by the SCO;
• carry out, or cause or permit to be carried out, an excluded operation without reasonable excuse; or
• intentionally obstruct any person from carrying out an operation required to be carried out under a SCO.

Who can create Species Control Orders or Emergency Species Control Orders ( SCOs or ESCOs)?

The 1981 Act nominates a number of relevant bodies that can create SCOs and ESCOs, these are:

• Scottish Ministers
• Scottish Natural Heritage
• The Scottish Environment Protection Agency
• the Forestry Commissioners

What other powers do relevant bodies have?

A relevant body may authorise a person to enter premises ^[65] to;

• determine whether a SCA or SCO (or revocation of them) is required
• serve notice regarding a SCA or SCO
• determine whether a SCO offence ^[66] has been committed and
• to carry out operations specified in a SCO.

A person authorised to enter premises may also take others with them if they feel it is necessary. ^[67]

A relevant body can take action to meet the requirements of a SCO if required operations have not been carried out or if excluded operations have been carried out. ^[68]

The 1981 Act also enables relevant bodies to recover the costs of operations undertaken to enforce a SCO. ^[69]

Introduction

9.1 This Chapter explains how the 1981 Act provides for the control of invasive non-native species ^[70] . It includes information on why and how Species Control Orders can be used as well as information on the procedure involved and in what circumstances costs are likely to be recovered.

9.2 As noted in Chapter 2, the most cost-effective way of dealing with the problems created by non-native species is to prevent these plants and animals from becoming established in the first place. If they have recently become established, the need is to rapidly control or remove them before they become a widespread problem.

9.3 Once they become widely established, full-scale eradication is only feasible or cost-effective in a small number of cases. However, there are some situations where action is very important and can be effective in reducing future impact.

9.4 Species Control Agreements ( SCA) and Species Control Orders ( SCO) enable relevant bodies ^[71] (Scottish Ministers, Scottish Natural Heritage, the Scottish Environment Protection Agency and the Forestry Commissioners) to set out measures that must be taken to control or eradicate an invasive non-native animal or plant. The responsibilities of these bodies are set out in Chapter 10.

Species Control Agreements

9.5 Where a relevant body is aware of a situation in which there is an invasive plant or animal outwith its native range, and where control is considered by the relevant body to be both viable and of sufficient priority, it must first attempt to make a Species Control Agreement ( SCA) with the owner or any occupier of the land (unless the situation is urgent in which case an Emergency Species Control Order ( ESCO) can be made - see section on ESCO below).

9.6 A SCA is a voluntary agreement and should set out what must be done by whom and by when in order to control an invasive non-native plant or animal. There is no penalty for non-compliance with these voluntary agreements (although it may result in a SCO being made).

Species Control Orders

9.7 Species Control Orders ( SCOs) can be made in the following circumstances ^[72] :

• where 42 days have elapsed since the relevant body made the offer to enter into a SCA and the owner or occupier has not signed up to the SCA;
• where the owner or occupier has refused to enter into a SCA;
• where the owner or occupier has entered into a SCA but has failed to comply with the terms of that SCA;
• where the relevant body has been unable to find out the name or address of the owner or any occupier of the premises and has not therefore been able to offer a SCA;
• where the relevant body considers that the making of a SCO is urgently necessary - in which case an Emergency SCO can be made (see below).

9.8 The relevant body must give notice in writing to the owner and any occupier that a SCO is being made ^[73] . The notice must have a copy of the Order attached and set out the reasons for making it. The SCO will come into force either:

• after 28 days after the date of the written notice, if no appeal is made (unless a later date is specified in the Order); or
• if an appeal is made, after it is refused or dismissed by a sheriff or withdrawn. ^[74]

9.9 A SCO must ^[75] :

• describe the premises to which the Order relates;
• be accompanied by a map showing the premises to which the Order relates;
• specify the type of invasive animal or plant to which the Order relates;
• specify any operations to be carried out, who is to carry them out and how and when they should be carried out;
• specify any operations that must not be carried out on the premises (for example, actions which might spread the species further);
• specify the date the Order will come into effect and the period for which it is to have effect;
• set out the circumstances in which an appeal against the decision to make the SCO, or the terms of the SCO, may be made.

9.10 The term "premises" has a wide definition ^[76] and covers vehicles, vessels, aircraft and other means of transport as well as land (including lockfast places and other buildings). It does not include a dwelling.

Emergency Species Control Orders

9.11 An Emergency Species Control Order ( ESCO) may be made when the relevant body considers it is urgently necessary and may be made without attempting to make a SCA in the first instance.

9.12 The following are some hypothetical examples of what might be considered urgent situations requiring an emergency order:

A boat is found to have the highly invasive carpet sea squirt ( Didemnum vexillum) on its hull.

The boat owner is about to sail up the west coast of Scotland, thereby potentially spreading the sea squirt. An ESCO could be made to ensure the sea squirt is removed from the hull and responsibly disposed of before the boat is allowed to sail.

A non-native crayfish is present within a set of ponds on land, close to a water course that does not contain any non-native crayfish.

Escape of the non-native crayfish from the pond is very likely and could happen at any time. An ESCO could be made to ensure action is taken to prevent the crayfish infesting any other bodies of water.

9.13 An ESCO comes into force ^[77] as soon as notice is given to the owner and any occupier of the land (unless the ESCO specifies a later date), and expires 49 days after it is made ^[78] . An appeal can be made against the decision to make a ESCO, or the terms of the ESCO, within 28 days of notice being given ^[79] . A sheriff can decide whether or not to suspend the effect of the Order while the appeal is under way ^[80] .

Offences, enforcement and powers of entry

9.14 Section 14K of the 1981 Act makes it an offence to:

• fail, without reasonable excuse, to carry out an operation required under a SCO;
• to carry out, or cause or permit to be carried out, an excluded operation (operations specifically prohibited in the terms of the relevant Order) without reasonable excuse; or
• intentionally obstruct any person from carrying out an operation required to be carried out under a SCO.

9.15 A relevant body may authorise a person, in certain circumstances, to enter premises ^[81] to

• determine whether to enter into a SCA;
• make or revoke a SCO;
• serve notice regarding a SCA or SCO;
• determine whether a SCO offence has been committed; or
• carry out work identified in a SCO.

9.16 These persons may take someone else with them as well as machinery or other equipment, for the purpose of assisting them in the exercise of the power ^[82] . For example, this may be an expert on control methods for the invasive plant or animal. If there is any damage caused by the authorised person or any person accompanying them, the relevant body must pay compensation unless the damage is attributable to the fault of the person who sustained it ^[83] .

9.17 If the relevant body considers that any operations required by the SCO have not been carried out or have not been carried out within the date specified or in the manner required by the SCO, the relevant body can take action to ensure the requirements of the SCO are met ^[84] . This may mean entering the premises and carrying out the operations themselves. In some cases more extensive action may be needed to remedy the effect of inadequate previous control, or of excluded operations.

9.18 The 1981 Act also sets out when a sheriff may grant a warrant ^[85] authorising the person authorised by the relevant body to enter premises. This may be necessary where occupiers are temporarily absent, premises are unoccupied or admission to the premises has been refused.

9.19 The following provides an example of the use of powers of entry in relation to a SCO:

A catchment scale eradication programme is underway for giant hogweed

A number of landowners/occupiers are identified in the catchment that have areas of giant hogweed on their land. SNH enters into a voluntary SCA with the various landowners and occupiers.

One occupier fails to take action as specified in the SCA, leaving an untreated and seeding population of giant hogweed which will rapidly spread into surrounding areas threatening the success of the whole programme. A SCO is therefore made requiring the occupier to abide by the same terms as the SCA originally outlined.

The occupier fails to abide by the terms of the SCO therefore SNH operatives gain access to the area to carry out control work themselves (see also section on recovery of costs).

Recovery of costs and the "polluter pays" principle

9.20 The 1981 Act enables relevant bodies to recover the costs of operations undertaken to enforce a SCO ^[86] . This power is discretionary and it is expected that this will depend on the particular circumstances. The intention is that costs will be recovered where it is fair and proportionate to do so, in accordance with the "polluter pays" principle. In others words, where it is clear that the person is responsible for the problem, for example if they have actively released the invasive animal or plant in question. There may also be other cases where it is fair to recoup costs, for example where the owner or occupier is considered to have caused the species to spread.

9.21 The following provides a hypothetical practical example of a SCO that might be made and why costs may or may not be recouped:

A population of American bullfrogs is detected in a series of ponds on private land

The landowner has admitted to releasing the bullfrogs but refuses access to their land. This is the only known population of bullfrogs in Scotland. The GB Risk Assessment for bullfrogs identifies them as high risk and notes that they may predate on, compete with, and pass disease on to, native species. They are also known to be a vector of Batrachochytrium dendrobatidis, the causative agent for chytridiomycosis, a potentially catastrophic fungal disease of amphibians.

SNH consider that measures are required to prevent the bullfrogs spreading and that work can only be carried by a trained individual.

A SCA is refused, specifically the landowner refuses access to land. A SCO is made by SNH, which sets out the operations that trained SNH staff will undertake and the period over which this will take place.

Costs are recouped from the land-owner on the basis of the polluter pays principle.

Right to Appeal

9.22 Owners and occupiers may appeal to a sheriff if they are aggrieved by the decision to make a SCO or aggrieved by the terms of the SCO ^[87] . An appeal must be made within 28 days of being given notice (in writing by the relevant body) of the intention to make a SCO ^[88] .

9.23 The sheriff must determine the appeal ^[89] and may either:

• affirm the SCO;
• direct the relevant body to amend the SCO;
• direct the relevant body to revoke the SCO; or
• make such other order as the sheriff sees fit.

9.24 Further appeal from the decision of the sheriff can only be made on a point of law ^[90] .